APPEAL from the Circuit Court of Macon County; the Hon. HARRY
I. HANNAH, Judge, presiding.
MR. JUSTICE KLINGBIEL DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 22, 1961.
The Department of Revenue assessed taxes under the Retailers' Occupation Tax Act and related statutes against G.S. Lyon & Sons Lumber and Manufacturing Company, measured by its sales of building materials to real-estate developers or speculative builders. Contending that such sales are not within the statute, the company filed a complaint in the circuit court of Macon County for review under the Administrative Review Act. The circuit court agreed with the company, holding that it was entitled to a credit against the assessment for the amount representing the tax on such sales. The Department appeals directly to this court, the public revenue being involved.
The facts are not in dispute. The company is engaged in the business of selling building materials in Decatur, Illinois. During the period involved here, it sold materials to real-estate developers or speculative builders who incorporated them into structures on land they owned themselves. Such builders construct houses or other improvements on land they own, and later sell the improved properties to prospective home owners and other buyers. In some of the instances the builders, prior to beginning construction or purchasing any materials, had made an oral agreement to sell the home to be built.
The trial court determined that the applicability of the act depends upon the intent or purpose of the sale and purchase, and held that since the builder intends to sell the home to be built, his purchase of materials is for the purpose of resale. The Department contends that because the materials are not resold as "tangible personal property" but as real estate, the sales made by the company to the builders were sales at retail for use and consumption, as contemplated by the act.
The retailers' occupation tax is imposed upon "persons engaged in the business of selling tangible personal property at retail." (Ill. Rev. Stat. 1959, chap. 120, par. 441.) The statute defines a sale at retail as "any transfer of the ownership of, or title to, tangible personal property to a purchaser, for use or consumption and not for resale in any form as tangible personal property, for a valuable consideration." (Ill. Rev. Stat. 1959, chap. 120, par. 440.) To justify the assessment of a tax, therefore, two tests or conditions must be met: (1) the transfer must be for use or consumption, and (2) it must not be for resale in any form as tangible personal property. Beatrice Foods Co. v. Lyons, 12 Ill.2d 274; Material Service Corp. v. Hollingsworth, 415 Ill. 284; Burrows Co. v. Hollingsworth, 415 Ill. 202.
We think it is clear, as the Department points out, that where the material is used in constructing a house on land owned by the builder, the one who sells materials to him incurs the tax even though the builder intends to sell the house after it is completed. To take the initial sale out of the category of retail sales within the meaning of the act it is necessary that the contemplated resale be a sale of the property in its form "as tangible personal property." It is obvious that building materials, after they have been used in the construction of a house, constitute real estate rather than personal property, and that they are not transferred to the homeowner in any form as tangible personal property when the house is subsequently sold. The sale of materials to the builder, therefore, is not for resale in any form as tangible personal property and the second condition of taxability is accordingly satisfied.
As to whether the sales of materials to the real-estate developers are "for use or consumption," the Department argues that the sales take the articles off the retail market, and that although the house or other structure is thereafter the subject of a sale, the materials themselves are not resold for a direct and specific consideration. We think the test relied upon by the Department, and announced by this court in Modern Dairy Co. v. Department of Revenue, 413 Ill. 55, is based upon the proper construction of the act. We observed, in the Modern Dairy case, p. 67, that "The title to this act describes sales `to purchasers for use or consumption.' It is noted that the terms are in the disjunctive rather than the conjunctive, indicating that the legislature intended `use' to mean one thing and `consumption' something else. Considering the purpose of the Retailers' Occupation Tax Act, it is reasonable to assume the legislature intended the term `use' to include any employment of a thing which took it off the retail market so that it was no longer the object of a tax on the privilege of selling it at retail."
The process or employment engaged in by a builder results in destroying the identity of the material as personal property and converting it into real estate. Using them for purposes of construction obviously takes the materials as such off the retail market, and since the act has no application to sales of real estate, the materials of which improvements are constructed can no longer be an object of the tax. It seems clear, in view of the purpose and intent of the act, that who uses the structure, which, in turn, has been built or created by a use of the materials, is irrelevant. The personal property has been transformed by the process of building, and in every sense contemplated by the act it is used or consumed in the process of construction or fabrication. The sale to the builder is the last transfer of the materials as personal property, and is a sale for use or consumption within the meaning of the act.
The company argues that the builders are not the users or consumers because "each of the purchasers in this case was engaged in the business of building homes, not for use, but for resale." Such reasoning, like that which this court reconsidered and rejected in the Modern Dairy case, ignores the fact that the tax is not concerned with sales of "homes" but with sales of materials or other kinds of tangible personal property. Whether the builder uses the improved real estate as a home, or sells it to someone else, is immaterial. It is the building material the tangible personal property the use of which is in question, and it is plain that the one who uses it, in the sense of that term as construed in the Modern Dairy case, is the one who erects out of it the house or other structure.
The company quotes at great length from our opinion in Stolze Lumber Co. v. Stratton, 386 Ill. 334, where the terms "user" and "consumer" were held to refer to the ultimate user or consumer. The interpretation of those terms made in the Stolze case and in the earlier decisions relied on by the company is no longer the law. It was rejected in the Modern Dairy case, wherein we said, p. 65: "Reviewing our previous decisions and the actions of the legislature retrospectively, we have come to the conclusion that it was not the intention of the legislature to use the terms `user or consumer' in the title of the act in the strict and narrow construction which this court placed upon those terms in the earlier cases culminating in the decision of the Stolze Lumber Co. case."
When construed in the light of its purpose, the act contemplates that use or consumption of personal property which takes it off the retail market so that it is no longer an object of the tax. Under this test it is clear that a builder uses or consumes lumber and the like. He has no intention of reselling the lumber or the other items of construction material which he buys. He is not in the business of selling materials. He is in the business of using them to build houses: the business of contracting, or of selling houses. It is evident that the materials he buys are taken off the retail market and are no longer objects of the tax. It follows that their sale to him is a measure of the tax.
In our opinion this conclusion applies whether or not the builder has entered into a contract for sale of the real estate, either oral or written. The controlling factor in determining taxability is the purpose for which the material is bought, and in ascertaining this purpose the mere matter of who owns the land is of little significance. Whether the builder is a speculative real-estate developer intending to sell the improved real estate at a profit, or whether he is a contractor having undertaken to improve another person's property, his purpose in purchasing lumber and other materials is to use them, not to resell them. In either case the material, in the process of use, loses its identity as personal property, becomes real estate by accession and is no longer the object of a tax on the privilege of selling it at retail. The builder buys his material to use, and not to resell as personal property, whether the real estate belongs to him or to a third party at the time he is engaged in improving it.
We recognize that the result reached here is not in harmany with that arrived in Material Service Corp. v. Hollingsworth, 415 Ill. 284, upon which the lumber company relies. In that case the argument was made, as here, that the materials become real estate upon incorporation into the building, and are not transferred as tangible personal property. We rejected the argument because no reasons were advanced in support ...